| People v Gilley |
| 2018 NY Slip Op 05226 [163 AD3d 1156] |
| July 12, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Khalim Gilley, Appellant. |
Craig Meyerson, Peru, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered April 9, 2015, upon a verdict convicting defendant of the crimes of robbery in the firstdegree and robbery in the second degree.
Late one night while the victim was walking home on a city street, two men emerged from adouble-parked car and robbed him at gunpoint. The victim alerted police who, minutes later,apprehended four suspects in a car that matched the description given by the victim. Defendant,who was one of those suspects, was charged by indictment with robbery in the first degree androbbery in the second degree. After a jury convicted him of both counts, County Court sentencedhim to an aggregate prison term of 17 years, with five years of postrelease supervision.Defendant appeals.
The verdict was not against the weight of the evidence. Defendant does not contest theevidence supporting his conviction of robbery in the second degree. As relevant here, "[a] personis guilty of robbery in the first degree when he [or she] forcibly steals property and when, in thecourse of the commission of the crime . . . , [that person] or another participant inthe crime . . . [d]isplays what appears to be a pistol, revolver, rifle, shotgun,machine gun or other firearm; except that . . . it is an affirmative defense that such. . . firearm was not a loaded weapon from which a shot, readily capable ofproducing death or other serious physical injury, could be discharged" (Penal Law§ 160.15 [4]). The defendant bears the burden of proving any [*2]affirmative defense by a preponderance of the evidence (seePenal Law § 25.00 [2]; People v Sposito, 140 AD3d 1308, 1309 [2016], affd 30NY3d 1110 [2018]; People v Singh,78 AD3d 1080, 1081 [2010]).
The victim testified that defendant and a codefendant approached him, defendant told him tobe quiet while the codefendant held a gun, and the two men rifled through his pockets and tookhis belongings. This evidence, which was supported by testimony of another individual whoremained in the car during the encounter, established the elements of robbery in the first degree.The police also recovered a sawed-off shotgun, which was proven operable by test firing and wasadmitted into evidence. Defendant asserts that the weight of the evidence does not support hisconviction of robbery in the first degree based on a lack of proof that the gun was loaded, but thePeople were not required to submit such proof. Although the gun was not loaded when it wasrecovered by police, defendant did not meet his burden of establishing his affirmative defensebecause the record contains evidence from which the jury could have believed that the gun wasloaded at the time of the incident (seePeople v Thompson, 147 AD3d 1298, 1300 [2017], lv denied 29 NY3d 1037[2017]; People v Brown, 81 AD3d499, 500 [2011], lv denied 17 NY3d 792 [2011]; People v Carter, 74 AD3d 1375, 1377 [2010], lv denied 15NY3d 772 [2010]; People vWilliams, 15 AD3d 244, 245 [2005], lv denied 5 NY3d 771 [2005]).
County Court did not err in denying defendant's motion to preclude the People fromintroducing evidence that the victim previously identified defendant. "A showup identification ispermissible so long as it was reasonable under the circumstances—that is, when conductedin close geographic and temporal proximity to the crime—and the procedure used was notunduly suggestive" (People vBrewer, 155 AD3d 1447, 1447-1448 [2017] [internal quotation marks and citationomitted]; see People v Ortiz, 90 NY2d 533, 537 [1997]; People v Mathis, 60 AD3d 1144,1145-1146 [2009], lv denied 12 NY3d 927 [2009]). Although the People bear the initialburden of demonstrating that the showup procedure was reasonable under the circumstances, "thedefendant bears the ultimate burden of proving that [it] is unduly suggestive and subject tosuppression" (People v Ortiz, 90 NY2d at 537).
The evidence at the Wade hearing established that, less than 20 minutes after therobbery, a police officer transported the victim to a location less than two miles from the scene ofthe incident, where other police officers had stopped a vehicle matching the description given bythe victim. The officer testified that the four suspects were presented one at a time by beingbrought into a spotlight across the street from the victim. For each individual, the officer askedwhether the victim recognized him. Defendant did not recognize the first two people, butidentified the codefendant as the person who had the gun and defendant as the other personinvolved in the robbery. Given the hearing testimony, the People satisfied their burden ofdemonstrating that the showup procedure was conducted in close geographic and temporalproximity to the crime (see People vArce, 150 AD3d 1403, 1405 [2017], lv denied 29 NY3d 1090 [2017]; People v Vaughn, 135 AD3d 1158,1159 [2016], lv denied 27 NY3d 1076 [2016]; see also People v Howard, 22 NY3d 388, 402-403 [2013]).Moreover, that the suspects were presented to the victim in handcuffs and in the presence ofpolice did not render the showup procedure unduly suggestive (see People v Brewer, 155AD3d at 1448; People v Coleman,144 AD3d 1197, 1198-1199 [2016]; People v Franqueira, 143 AD3d 1164, 1166 [2016]; People v August, 33 AD3d 1046,1048-1049 [2006], lv denied 8 NY3d 878 [2007]; People v Woodridge, 30 AD3d 898, 899 [2006], lv denied 7NY3d 852 [2006]).
[*3] Alternatively, defendantargues that County Court should have reopened the Wade hearing during trial in light ofthe victim's trial testimony that, en route to the scene of the traffic stop, officers told the victimthat they had captured his attackers and he saw the suspects all together before they werepresented individually. "A trial court may reopen a pretrial hearing if it 'is satisfied, upon ashowing by the defendant, that additional pertinent facts have been discovered by the defendantwhich he [or she] could not have discovered with reasonable diligence before the determination'of his [or her] pretrial application" (People v Fuentes, 53 NY2d 892, 894 [1981], quotingCPL 710.40 [4]; accord People vNewell, 148 AD3d 1216, 1219-1220 [2017], lv denied 29 NY3d 1035[2017]).
County Court did not abuse its discretion by refusing to reopen the Wade hearing(see People v Clark, 88 NY2d 552, 555-556 [1996]). It is unclear whether defendantcould, with reasonable diligence, have discovered the victim's account of the showup procedureprior to the initial Wade hearing (see CPL 710.40 [4]; People v Gibson, 117 AD3d 1317,1322 [2014], affd 24 NY3d 1125 [2015]; People v Cepeda, 48 AD3d 294, 295 [2008], lv denied 10NY3d 957 [2008]). In any event, the inconsistencies between the officer's testimony at thehearing and the victim's testimony at trial would not have changed the outcome of that hearing(see People v Clark, 88 NY2d at 555-556; People v Bellamy, 118 AD3d 1113, 1117 [2014], lv denied25 NY3d 1159 [2015]). Indeed, the conversation that the victim purported to have with officers"merely conveyed what a witness of ordinary intelligence would have expected under thecircumstances" (People v Franqueira, 143 AD3d at 1166-1167 [internal quotation marksand citation omitted]; see People v Mathis, 60 AD3d at 1146; People v Gatling, 38 AD3d 239,240 [2007], lv denied 9 NY3d 865 [2007]). Moreover, that the victim may have seen thesuspects together from afar before he was asked to identify them would not, on its own, renderthe showup procedure unduly suggestive (compare Matter of Eljihn C., 134 AD3d 819, 820 [2015], lvdenied 26 NY3d 919 [2016]; People v Bumbray, 259 AD2d 364, 364 [1999], lvdenied 93 NY2d 922 [1999]), particularly considering that the victim could not identify thefirst two suspects presented to him.
The People did not bolster the victim's identification of defendant through questions posed tothe officer who conducted the showup procedure. In response to the victim's testimony that calledthat procedure into question, the People asked the officer about the procedure utilized, but didnot elicit testimony on direct examination about the victim's identification of defendant. This wasnot improper bolstering (compare People v Trowbridge, 305 NY 471, 474-478 [1953];People v Jones, 75 AD2d 607, 607 [1980]; see generally People v Smith, 22 NY3d 462, 466 [2013]).
County Court appropriately exercised its discretion when it denied defendant'spost-summation request to testify. "CPL 260.30 sets forth the order in which a jury trial is toproceed, but the common-law power of the trial court to alter the order of proof in its discretionand in furtherance of justice remains at least up to the time the case is submitted to the jury"(People v Washington, 71 NY2d 916, 918 [1988] [internal quotation marks and citationomitted]; see People v Olsen, 34 NY2d 349, 353 [1974]). Although a criminal defendanthas a constitutional right to testify on his or her own behalf (see People v Morgan, 149 AD3d 1148, 1152 [2017]; People v Harden, 99 AD3d 1031,1032 [2012], lv denied 20 NY3d 986 [2012]; People v Terry, 309 AD2d 973, 974[2003]), the court conducted a colloquy with defendant at the end of the People's case to ensurethat defendant was fully aware of his right to testify and that he had freely decided not to exercisethat right. Under the circumstances, where the court concluded that defendant knowingly waivedhis right to testify, the court did not abuse its discretion in denying [*4]his request, which was made after the proof was closed andsummations had been delivered (see People v Franco, 271 AD2d 383, 383 [2000], lvdenied 95 NY2d 865 [2000]; People v Braxton, 254 AD2d 365, 366 [1998], lvdenied 93 NY2d 850 [1999]; compare People v Harden, 99 AD3d at 1032).
We have reviewed defendant's remaining contentions and find them to be without merit.
Garry, P.J., Clark, Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.